April 29, 2009

Kennedy's Skepticism and Scalia's Odd Comment at Supreme Court Today

It was a tough morning at the Supreme Court for civil rights advocates, who are hoping the justices will uphold the pre-clearance provision of the Voting Rights Act. During oral arguments in Northwest Austin Municipal Utility District Number One v. Holder, the Court's conservatives, including Justice Anthony Kennedy, seemed very skeptical of the need for covered jurisdictions, mainly in the South, to seek approval of the Justice Department before they can change voting laws or procedures -- while other states in the North and West don't have to. While the election of the nation's first African-American president last fall was not mentioned specifically, it loomed large over the hour-long argument.

Kennedy, in particular, voiced deep dissatisfaction with the notion that Congress, in renewing the act in 2006, "has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. ... And the governments in one state are to be trusted less than the governments in the others." While at another point Kennedy said, "No one questions the validity, the urgency, the essentiality of the Voting Rights Act," Kennedy added, "The question is whether or not it should be continued with this differentiation between the states." That concern for sovereignty may make Kennedy's crucial vote unavailable to supporters of the act.

Both Deputy Solicitor General Neal Katyal and NAACP Legal Defense and Educational Fund lawyer Debo Adegbile were forceful in countering the criticism by asserting that Congress had made extensive findings about the continued need for pre-clearance in certain jurisdictions, and that support for the renewal was widespread both in Congress and in the states -- including states covered by the law.

That point about congressional support led to an unusual comment from Justice Antonin Scalia. Noting that the Senate had approved the Voting Rights Act extension by 98 to 0 in 2006, Scalia mused that the Israeli Supreme Court used to have a rule that "if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there." Scalia posited that members of Congress like the Voting Rights Act because they were elected under a system that included the act.

Scalia's invocation of the Israeli ruling to question the wisdom of unanimity was notable for two reasons. First, Scalia is a leader of the camp that thinks the Court should not look to foreign court rulings to guide its constitutional interpretation. Second, it may have slipped Scalia's mind, but on Sept. 17, 1986, the Senate cast exactly the same unanimous vote, 98 to 0, on another matter before it: confirming Scalia's nomination to the Supreme Court. More on the arguments later at legaltimes.com

Footnote: The Court has released the audio of today's argument to the media, and it is beginning to be broadcast at c-span.org and elsewhere. At the Election Law Blog, Rick Hasen of Loyola Law School in Los Angeles is live-blogging his analysis of the argument as it airs.

UPDATE: In response to reader comments, it should be noted that while Justice Scalia referred to the "Israeli Supreme Court" in his comment mentioned above, he then referred to it also as the Sanhedrin, the ancient Jewish court system that issued its last ruling more than 1,600 years ago.

Comments

Justice Scalia was not making an argument for international input. See Roper v. Simmons, 543 U.S. 551,624 (2005)(Scalia, J., dissenting). The rule that Justice Scalia was refering to was not of the modern Israeli Supreme Court. The rule that a unanimous death penalty decision
is invalid, is from the ancient text of Maimonidies in his rules of the Jewish High Courts that served in the times of the Holy Temple. The court in question was comprised of no less than 70 judges, and because Jewish law makes it very tough to actually execute someone, and there were no lawyers , the theory was that it impossible that not a single judge out of 70 could not find some loophole. I can't be sure that the current Israeli Supreme doesn't have such a law, but it sounds very unlikely. I am however sure that this was the law in the Jewish Courts over 2000 years ago.

There's nothing odd about the comment, or at least, it's not odd for the reasons you suggest. Scalia clearly isn't saying, you know, let's adopt the Israeli Supreme Court's death penalty rule and apply it to an utterly different context of unanimously approved legislation. Let's look to Israel to decide what to do with the Voting Rights Act. All he's saying is that, as a very general matter, unanimity can be a sign of something fishy, and the Israeli rule's an example of that.